Bombay High Court

SUNITA DILIP PAWALEversusEKNATH KONDIBA DARWATKAR SINCE DECD THROU. L.H.

Decided: 25 August 2026
Disposal: Disposed Off

Holding

The amendment was not permitted as the interdict under Order VI Rule 17 (proviso) applied and the amendment would change the nature of the suit.

Summary

Sunita Dilip Pawale filed a writ petition challenging a Small Causes Court order that rejected her application to amend the plaint. The amendment sought to introduce a declaration that a 2009 sale deed was not binding, implicating the alleged marriage of Alka Darwatkar and the deceased father of the plaintiff. The Civil Judge held that the proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 barred amendment because the evidence was already closed and the plaintiff had not sought amendment earlier despite Alka Darwatkar being summoned as a witness. Moreover, the proposed amendment would change the suit’s character from a partition and possession case to a dispute over the legality of a marriage, thereby altering the nature of the suit. Consequently, the petition was dismissed for lack of due diligence and because the interdict applied.

Issues considered

Whether an amendment to the plaint can be permitted after the evidence has been closed under the proviso to Order VI Rule 17 of the CPC, 1908.
Whether the proposed amendment would alter the nature and character of the suit, thereby rendering it impermissible.
Whether the plaintiff exercised due diligence in seeking the amendment.

Legislation cited

Code of Civil Procedure, 1908 — s. Order VI Rule 17 (proviso)

Subjects

amendment of plaint
Order VI Rule 17
evidence closed
partition suit
change of nature of suit
due diligence
sale deed
declaration
civil procedure

Judgment

                                                                      41-WP10584-2026.DOC

                                                                                   Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 10584 OF 2026

                      Sunita Dilip Pawale                                    ...Petitioner
                                       Versus
                      Eknath Kondiba Darwatkar (Since
                      Deceased) Through LRs.                             …Respondents

                      Mr. Sudhir Sadavarte, a/w Pritam Nigade, for the Petitioner.
SANTOSH
SUBHASH                                                 CORAM:      N. J. JAMADAR, J.
KULKARNI                                                DATED:      25th AUGUST, 2026
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.08.27
14:45:59 +0530        Oral Order:-

                      1.    Heard the learned Counsel for the petitioner.


                      2.    The challenge in this petition is to an order dated 6 th July,

                      2026, whereby the learned Judge, Small Causes Court, has

                      rejected an application for amendment in the plaint.


                      3.    The learned Civil Judge was of the view that the interdict

                      contained in the proviso to Order VI Rule 17 of the Code of Civil

                      Procedure, 1908 came into play, as the evidence of the plaintiff

                      was closed and despite an order dated 5th March, 2024, whereby

                      Alka Darwatkar was summoned as a witness No.2 by defendant

                      Nos.2 to 4, the plaintiff had not sought the amendment in the

                      plaint.



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                                                        41-WP10584-2026.DOC

4.    The Sale Deed in respect of which the declaration was

sought by the plaintiff that it was not been binding upon the

plaintiff seems to have been executed on 30 th July, 2009. Having

sought declaration in respect of the said Sale Deed to which

Alka Darwatkar is shown as the consenting party, there was no

plausible    reason     for     not     raising   the     matter    before

commencement of the trial.


5.    In any event, the proposed amendment would alter the

character    of   the   suit,    which      has   been     instituted   for

partition and separate possession of the suit property. If the

proposed amendment is allowed, the dispute as to the legality

and validity of the purported marriage of Alka Darwatkar with

the deceased father of the plaintiff would become a fact in issue.

Evidently, till date Alka Darwatkar has not instituted any

proceeding asserting her right over the suit property in the

purported capacity of the wife of the deceased father of the

plaintiff.


6.    In these circumstances, the learned Civil Judge was

justified in declining to grant permission to amend the plaint as

the interdict contained in the proviso to Order VI Rule 17 of the

Code came into play and there was lack of due diligence, and



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                                             41-WP10584-2026.DOC

the proposed amendment would change the nature and the

character of the suit.


7.   The petition, thus, stands dismissed.


                                        [N. J. JAMADAR, J.]




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